Avoiding a criminal conviction for young people (aged 10-17) by diverting them away from prosecution is the starting point for the youth justice system. The key bodies involved in youth justice should all be working against the unnecessary criminalisation of children. This is based on evidence that a ‘Child First’ diversionary approach is more likely to prevent offending than formal prosecution.
In this article I will explain the types of out of court resolutions that are available to children, how they relate to specific offences, and how parents and defence lawyers should engage with the police and prosecutors to help young people avoid conviction.
Formal resolutions
Youth cautions and youth conditional cautions are the most common formal out of court resolutions. Formal means that they form part of a young person’s criminal record.
Youth cautions
For the police to issue a youth caution there must be sufficient evidence to charge the child, the child must admit guilt, and the officer in charge of the case must be satisfied that the child should not be prosecuted.
Youth cautions should be issued as soon as practicable, and the police must refer the child to the Youth Justice Service (YJS) who will assess them and confirm that a caution is the most appropriate disposal.
Youth conditional cautions
Youth conditional cautions require that a child complies with certain conditions to facilitate rehabilitation, repair the wrong caused or punish the child in an informal way. These should be appropriate, proportionate and achievable. They should only impose what’s necessary and avoid unrealistic demands on the child.
Financial penalties (max. £100) must consider the child’s ability to pay. Other conditions may involve working with the council to right a wrong (e.g. clean up graffiti) or work with a social worker to help prevent reoffending. Conditions cannot last more than 16 weeks from the date the caution was imposed for low-level offences and ideally should not exceed 20 weeks for more serious offences, subject to appropriateness.
Failing to comply with conditions of a youth conditional caution can lead to warnings, may stay on the child’s record, or in the most serious cases may lead to prosecution for the original offence. However, the police are expected to try to avoid this by encouraging compliance.
Informal resolutions
Informal resolutions usually do not form part of a child’s criminal record and can be offered for very low-level offences committed by first-time offenders. The most common types include:
- Community resolution order – designed for low-level offences such as illegal graffiti or drug possession. The child need only accept responsibility for the offence and be prepared to complete any agreed intervention (e.g. issue an apology, clean graffiti or attend a drugs meeting).
- Triage – accompanied with No Further Action outcome. Local police forces decide how to administer triage but it usually involves the child speaking with a police officer or the Youth Justice Service about why their actions were wrong and how to avoid reoffending.
- Outcome 22 – designed for when a rehabilitative or educational intervention activity has taken place and it is no longer in the public interest to take further action.
Serious offences
Technically, an out of court resolution can be considered even for serious offences. Calculating whether an out of court resolution is appropriate to a specific young person’s situation is governed by the Child Gravity Matrix, which takes into account aggravating and mitigating factors that guide police officers towards or away from prosecution.
Knife crime is a prevalent issue today that would normally warrant prosecution. For adults, possession of a knife in a public place carries a sentencing starting point of 6 months’ imprisonment. For a first-time knife offence, avoiding conviction may be vital to a child’s future, such as preserving future job prospects.
The guidelines state that a youth conditional caution should be the starting point for any child under 16 provided it’s their first time and the offence is no more serious than simple possession (e.g. they haven’t tried to use or threaten anyone with the knife). A youth conditional caution is also available for those aged 16 to 17, but exceptional mitigating circumstances must exist. These may include underlying mental health issues, exploitation, persistent bullying, or peer pressure. A good defence lawyer will discover and advance those exceptional circumstances.
The commission of sexual offences by children is not uncommon. Intense hormones and inexperience can blur the lines between sexual experimentation and a criminal offence. Out of court resolutions in this respect can avoid prosecution of a child which would otherwise impact them for the rest of their lives. However, accepting a formal resolution can still lead to the child being placed on the sex offender register and all options must be considered before a child accepts a caution for a sexual offence.
Tips for parents/guardians
It can be distressing for a parent/guardian of a child accused of a crime, who must work with the defence lawyer by providing information about their child’s situation which could help them to avoid conviction. Understandably, children in custody are often unwilling to speak to strangers about their underlying issues that resulted in offending. Statistically this is more true for children from minority ethnic backgrounds or looked after children who may have already felt let down by the system, leading to a lack of trust in authority figures or adults in general.
Encouraging non-judgmental conversations with your child about their school or social life could embolden them to open up, unearthing those mitigating factors that could be the difference between conviction and diversion.
Good defence lawyers should:
- Engage with parents/guardians at the police station to discover information about the child’s mental health issues, school and home life.
- Familiarise themselves with the Child Gravity Matrix so they know what to look for when considering a child’s situation.
- Make representations to the police and Crown Prosecution Service as early as possible to incentivise diversion over prosecution.
A word of warning
While accepting an out of court resolution will often be a positive alternative to prosecution, a young person’s decision to admit guilt shouldn’t be taken lightly. Defence lawyers will help the child to consider the evidence against them and always advise in their best interest. A parent of a child who maintains their innocence should not be afraid to take the case to trial. Accepting an out of court resolution just to avoid court proceedings will never be acceptable course of action.
Formal resolutions such as cautions can also be disclosed by the Disclosure and Barring Service (DBS) which may affect future job applications. They can be barrier to travel to certain countries, and can be used as evidence during family law proceedings or immigration applications.
How can we help
Our experienced Crime team can provide early advice, represent your child at police interviews and in youth court, and ensure that your child’s interests are protected to produce a more favourable outcome.
Contact us for a free, no obligation initial discussion on 020 3440 8000 or email enquiries@tvedwards.com.
Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.
